Will Americans Be Required to Give DNA?

Do police have a right to stick a needle in your arm, or a swab in your mouth, to collect samples of your DNA—without a warrant and regardless of whether you’ve been convicted of a crime? That’s the question that is now being debated in courtrooms across the nation.

Early last summer, a brief was filed by the San Francisco-based Electronic Frontier Foundation (EFF) in the case of United States vs. Mitchell. EFF argued that pre-conviction collection of the defendant’s DNA violated his 4th Amendment protection from unreasonable search and seizure. However, just before the case was to be heard, the defendant pleaded guilty, and the issue became moot.

In response, EFF’s Rebecca Jeschke called on the Supreme Court to intervene, saying that the mandatory DNA collection from people who are not convicted of crimes “continues unchecked—perhaps leading to a future where everyone’s DNA is sampled, profiled, stored and routinely accessed by government officials without suspicion of any criminal wrongdoing.”

Meanwhile, law enforcement agencies continue to violate the rights of ordinary Americans pursuant to a little-known, rarely challenged federal mandate.

In 2006, then President George W. Bush signed the DNA Fingerprint Act, which allows the government to take and retain DNA from anyone who has been arrested on a felony charge. Since then, additional regulations from the Department of Justice authorize police to use any means “reasonably necessary to detain, restrain and collect a DNA sample from an individual who refuses to cooperate in the collection of the sample.” Anyone who fails to cooperate can also be subjected to additional charges. Once collected, those samples are placed in a national database called Combined DNA Index System and are freely available to federal, state and local law enforcement agencies.

Though the feds maintain that the data is strictly used to match suspects with evidence collected at crime scenes, EFF Staff Attorney Hanni Fakhoury argues, “DNA reveals an extraordinary amount of private information about you—your family background, your current health, your future propensity for disease and possibly even your behavioral tendencies.”

As the database grows, there becomes an increased likelihood that a DNA sample could match another with a similar profile. In a 2010 article for Washington Monthly, attorney Michael Bobelian writes, “The reasons for this aren’t difficult to grasp: Consider what happens when you take a DNA profile that has a rarity of one in a million and run it through a database that contains a million people; chances are you’ll get a coincidental match.”

As if stealing DNA from unconvicted arrestees wasn’t bad enough, some law enforcement agencies have taken it one step further. In 2007, the Gilpin County Sheriff’s Office in Colorado set up a roadblock to check for drunk drivers and demanded breath, blood and saliva samples from all travelers.

On Jan. 4, New York Gov. Andrew Cuomo proposed making his state the first in the country to take mandatory DNA samples from all convicted offenders, even those charged with minor crimes.——Keith Johnson is an independent journalist and the editor of “Revolt of the Plebs,” an alternative news website that can be found at www.revoltoftheplebs.com.